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Originally Posted by Greedy,Greedy,Greedy
Blocs have always been overstated - easier for simple minds if it's a team sport. I think the most notable development this term, however, has been Clarence Thomas going ultra-right without significant criticism from any of the federalist society or libertarian sorts who like to pontificate about the court or from any of the conservative members of the court itself. If you are fond of bloc analysis, I'd say look for the emergence of a third block of the radical right, and don't be surprised if that bloc has a fundamentalist vibe to it (oddly, a Catholic fundamentalist vibe). So there will be an increasing number of decisions where Thomas together with Alito or Kavanaugh or one or two others goes uber-right, the majority kind of shrugs and ignores them, and maybe one or two of the liberals point out that they're total lunatics challenging the very fundamentals of representative constitutional democracy.
And, of course, the court continues to engage in truly crappy historical analysis. But that is neither new nor particularly partisan, even if Alito and Thomas deserve particular awards this year, Alito for Bradensburg and Thomas for the Indiana case. Someone in Bradensburg should have done a "concur but for the moronic view of history" opinion.
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I actually see what may be a three-justice pragmatist bloc with Roberts, Kavanaugh, and Breyer. Thomas is an absurdity, and Alito simply scary.
As for Bladensburg (correct spelling), it is the next step in the death throes of
Lemon, which Scalia colorfully described as:
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Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398–99 (1993).
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I am a rabid First Amendment adherent and an often outspoken atheist, but reason is winning out over theism, and the odd cross on a hill is less important or symbolic than it used to be.
